Surely, the calls for no-fault divorce are now too loud to ignore?

family law

I know I keep ‘banging on’ about the need for no-fault divorce, but I make no apology whatsoever for that. Apart from the lack of legal aid, it is perhaps the most important family law issue of the moment. And the calls for the introduction of no-fault divorce keep getting louder.

The latest voice to add to those calls comes today from the Nuffield foundation, or more accurately from Professor Liz Trinder at the University of Exeter, in Finding Fault, a report funded by the Nuffield Foundation, summarising the findings from a study that explored how the current law regarding divorce and civil partnership dissolution operates in practice.

A summary of the report sets the tone by beginning with the following:

“The failure to implement the Family Law Act 1996 has left the divorce law in England and Wales untouched since 1973, and out of step with similar jurisdictions in Europe and North America in its heavy reliance on ‘fault’ as a basis for divorce.”

The Family Law Act 1996, as regular readers may know, included the then Government’s ill-fated attempt to bring in a system of no-fault divorce. Sadly, the Act’s provisions in that regard were so flawed that they were initially shelved, and then ignominiously repealed by the Children and Families Act 2014. So the powers that be acknowledged that we should have had no-fault divorce more than twenty years ago, but we still don’t have it, unlike other civilised countries.

Instead, we are left with this archaic system in which most people taking divorce proceedings have to ‘prove’ that their spouse was to blame for the breakdown of the marriage. As the researchers say:

“The current divorce law is now nearly 50 years old. Its apparent rationale and operation are at odds with a modern, transparent, problem-solving family justice system that seeks to minimise the consequences of relationship breakdown for both adults and children.”

Quite.

Note that I put the word ‘prove’ in quotation marks. The reason I did so was easily picked up by the researchers, who said in the summary:

“The study shows that we already have something tantamount to immediate unilateral divorce ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state.”

They explain this further later in the summary, by reference to ‘unreasonable behaviour’ petitions:

“Our analysis of behaviour cases, confirmed by interviews with judges and legal advisers, indicated that even the most minimal or trivial allegations are sufficient to meet the threshold for behaviour, as long as one element is attributable to the respondent.”

They go on:

“The reduction in expectations of what is required appears to reflect a collective shift in attitude of the courts. Qualitative interviews with legal advisers and judges underlined that, like family lawyers, courts take a pragmatic stance that if one party has decided the marriage was over then that was the reality. It was then the court’s task to try to facilitate the divorce – “looking to make the petition work” – not to place hurdles in the way. As a matter of law as well as logistics, it is clearly not for the court to engage in what are usually inherently non-justiciable issues about who was to blame.”

So essentially the law is being brought into disrepute. Litigants, lawyers and judges all know that the world has moved on in the fifty years since the law was put into its current form and we now realise that there is no point whatsoever in keeping a marriage going if one party wants out. They are therefore basically ignoring the will of the legislators who made the law.

But, as indicated, it is not just about bringing the law into disrepute. As the researchers say:

“There is a very robust body of evidence on the negative impact of parental conflict on children’s wellbeing. A key objective of family law and policy over the last few decades has therefore been to try to contain and minimise parental conflict post-separation. The evidence from this study is that the use of fault may undermine those efforts and actually trigger, or exacerbate, parental conflict in some cases.”

As we have been saying for years.

The researchers conclude that the law is in need of change, and they set out three options for reform: stricter interpretation of the present law; a modification of the present system, reducing separation periods to one year with consent and two years without; and a notification system where divorce would be available if one or both parties register that the marriage has broken down irretrievably and that intention is confirmed by one or both parties after a minimum period of six months. Unsurprisingly, they plump for the last option, pointing out that:

“The divorce process is currently being digitised. This is a timely opportunity for long overdue law reform so that divorce is based solely on irretrievable breakdown after notification by one or both spouses.”

Over to you, Parliament…

There is nothing remotely surprising about the report’s findings. As I said just now, we supporters of no-fault divorce have been saying all of this for years. Hopefully, the launching of the report in Parliament today will at last make it impossible for our legislators to ignore this issue any longer.

Photo by floeschie via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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19 comments

Helen Dudden - October 30, 2017 at 4:10pm

I totally agree with you John. The collecting of evidence to prove you need a divorce. There always is a situation that could be different, but generally it could be a good way to a smoother end.

JamesB - October 31, 2017 at 11:15am

Perhaps the thinking is that it saves marriages where they are going through a bad patch and (reasonably) neither side want to start throwing mud for a quickie divorce. If you take away the mud slinging, you get more divorce, is that what you want? Because, that’s what’ll happen.

For me, I say the third option also, but make it two years rather than six months. I say this as people can divorce in anger, for example Brangelina perhaps. Especially with Pnd and big fights and arguments, changes etc. I think in Ireland it’s 5 years separation. In Philippines it’s banned. What we have could and should be replaced, problem is agreeing on what to replace it with. I think the Scottish system minus the separation word. One year if mutual. Two years if unilateral. Let people live together and have sex if they like during the qualifying period, may even keep them together for each other and the children which is a good reason. Speaking as someone who’s worse Ub fault was putting the financial folder too high for my wife to reach without a stool. Ridiculous reason. I was surprised the Judge agreed it. I wouldn’t use Ub though, most reasonable people wouldn’t. It’s a slap in the face of the other spouse and rubbishing of the marriage. The deterent effect can be replicated less painfully with time periods, as the Scottish and Irish and others have, and I suggest that. Six months is too short. Then again quickie divorces favour lawyers which is how we got them, with their too much lobbying power in the past. Good to see politicians standing up to them. Hopefully they will consult widely and not just lawyers and feminists and the request for divorce won’t initiate robbing either spouse or false Dv Da allegations. That is a se poo agate subject though. I like to think police and lawyers and judges don’t fall for that one as much these days and ongoing.

JamesB - October 31, 2017 at 11:19am

Phone spell checker.
That is a se poo agate subject though

Should read, that is another separate, but related subject though.

These phones and spell checkers can be strange.

Helen Dudden - October 31, 2017 at 11:35am

Sorry, I don’t agree. You have some actually wrongly accusing, of various actions to get a divorce. Many years ago it was even worse.
For instance, in some foreign cases it’s gets very heavy. It includes one case I know, where the ex husband said his ex partner was mentally unstable. This is still on going after several years. She is stuck in another country, and a British subject. There is limited access to the boys. No matter what is said it done the outcome is the same.
Marriage and relationships are a complex issue, emotions rule. There could be options for mediation, but if the relationship is over, then nothing will help.
As a mother and great grandmother, I would love to see progress on the subject of parental alienation and child access, painless as possible divorce. It has to change.

JamesB - October 31, 2017 at 12:17pm

You don’t agree with what? The time period? Other than that we agree on option three? Not sure what you are saying I am proposing is wrong. I am not proposing to keep the current system. Perhaps you should have read all of what I said before you disagreed with me. If you want to change the law here (as do I) we need to work together.

JamesB - October 31, 2017 at 1:08pm

re No matter what is said it done the outcome is the same

I disagree with that. It matters how it is done, especially where there are children involved. Calling names isn’t the best way, I understand how it happened and see why it is hard to change without increasing divorce, although there are ways to stop that the time periods. Making divorce harder does have some benefits, speaking as someone married to a Filipina. Although on balance i think no fault divorce initiated by either with one year consent signed by both or two years with either signing, is the way to go.

JamesB - October 31, 2017 at 1:10pm

My second marriage. My first was a right mess, caused by dodgy uncertain law and mental health issues on their side (perhaps mine also) and lawyers milking it which is what I don’t recommend and for that reason think the law needs to change.

JamesB - October 31, 2017 at 11:54am

There is not usually consent. Courts saying unwilling to defend is consent is well dodgy and is bringing courts into disrepute. I agree.

Like Ken Clarke saying child contact law is fair as not many cases go to contested final hearing. Ridiculous argument that. He was sacked soon after wards as justice minister. Probably as he was talking nonsense and not just nonsense but insulting parents also.

That people won’t defend or bang head against a brick wall is not agreement, saying it is is out of order. To prove my point. Following Scotland moving from our system the vast majority of their divorces went from Ub ones to two year ones, good result. Ub ones are bad for all except lawyers raking in fees from arguing people. Shows how much these Ub petitions are worth. They are disgusting.

Know someone who got Ub divorced for being an aggressive driver in London. You can’t drive without being aggressive in London. Also for requesting not enough sex (lack of affection) also too much sex (too much affection). Anything goes really and is overdue replacing as there is no such thing as an anodyne divorce petition. Especially where the petitioner is usually the one on the wrong and stands to gain the most through no fault relevant to financial settlements (which I agree with, it shouldn’t be relevant). If you want to run out on your marriage you wait two years until you are able to chuck the other out. The dodgy non mols and ouster and occupation orders need getting rid of also. If not, mum takes kids to hospice, goes to court. Bloke out of fmh, mum and kids back in for two years Dad banned in gutter. Dodgy that. Would be good to see politicians consulting the likes of Fnf and F4 and the Code and the Muslims Jews etcj as well as lawyers and feminists in the consultation which is overdue as a change is needed.

JamesB - October 31, 2017 at 12:13pm

Forcing separation as per Scottish law makes no sense either for reasons I mentioned above (its another inflammatory requirement). A signature or two from the concerned parties at the beginning and end should suffice.

JamesB - October 31, 2017 at 1:35pm

Putting a two year breathing space period into the process would also make expensive contentious legal arguing less likely, and with the possible exception of lawyers, who should be able to make up any loss on this on prenup and increased marriage and divorce work, that’s a good thing, people doing less ‘contentious litigation’ is an improvement.

Seriously - October 31, 2017 at 2:10pm

Agree with you JamesB and you Helen regards PA and child access, but if Divorce wasn’t so easy then PA wouldn’t be so easy either . I say think of the kids , no kids want their parents to split up or to have to choose where they spend their time . So some “parents” need to grow up and be more responsible and mental health experts should be available in every family court , afteral there’s plenty of it about , more than most realise .

Helen Dudden - October 31, 2017 at 4:34pm

Well the present system is not working in some areas. It has been in the past, what are the reasons you don’t want to stay with this person? So reasons has to be found. Is this the way? Most certainly not. We all can’t get in with another, it has to be give and take. So, you can’t keep someone in a Marriage or relationship If they don’t want to stay. I think we could agree on that point. Now, do we feel mediation could help? Often lack of talking to one another can be an issue, arguments that get out of hand. Perhaps it should be before committing to the relationship there is some form of preparation, like mediation. If things aren’t working having a child won’t make it better. It’s not just the intimate side of the relationship, I think you have to want marriage and commitment, as I noticed one comment, adult enough. Actually, I believe in marriage that is why I want to see things better for children, often they suffer, the go to your father he is a so and so. The other way your mother is a total so and so. So children become alienated, they feel pushed to chose one or the other. Nothing in life will ever be perfect but it could be better.

JamesB - October 31, 2017 at 7:15pm

I agree with all that, apart from… the mediation point. You can’t make people talk. Also, marriage and pressure marriage classes are a bad idea. If two people want to get married, let them, if one wants to get divorced let them wait two years, if both do, one year wait. Oh, I wasn’t condoning marital rape if you suggested that. I am not that old school, sex is with consent of both or is rape otherwise. Not sure what you meant on that. I just mean the whole separation thing is an issue for people without so much money and divorce and marriage need to be less rich persons matter. Thanks for the discussion and reply.

Helen Dudden - November 1, 2017 at 9:10am

No, I should have made that clearer. After, the relationship is over, a couple could still be married but things have changed.
It’s how we view the next step. I’m sorry but talking is important, that’s how we resolve our disagreement in any situation. That’s how we resolve problems in everyday life.
In some religious groups there are pre marriage classes, if we agree or disagree, should it help prevent divorce then it could be of use.
The idea of marriage is to build a firm foundation and to produce a family life, it is sad when it fails. But if does have to fail, let it be a way forward, rather than a step back.
I agree, with what is being said on a quicker, less painful end of a relationship.

JamesB - November 1, 2017 at 12:01pm

I am for a less painful end. I dont think I said quicker, the UB route is too quick and too messy to be honest. 2 years without consent 1 year with consent is ok on signatures as I just said.

I have been through mediation and the vicar did try and give us a pre marriage class. He gave us both a questionaire and asked us both to answer the questions for ourselves and the other person, including things like, what is favourate food, evening out, other country, attitude to relationships, etc. (was a while ago now – 1999 – struggling to remember it). I looked at it and thought it through and didn’t write down answer. Ex wife did also. We were too busy planning the marriage at the time. Wife did also have mental breakdown at that time which should have meant to most people to call the marriage off. But … and here is my point, most marriages are not perfect, its a gut decision and I do not regret it or the children from that marriage. I can’t explain to some liberal establishment type how I feel about the marriage or not and the same with the divorce, its none of their damned business.

With regards to the mediation, some people are fragile (thinking of some of my girlfirends) male and female, some people are bullys male and female. Mediators will often not know the dynamics and will side with who seems to be in the right, and its usually wrong, whoever cries gets the sympathy, the whole thing gets messy and you should not expect your ex to talk to you again following a divorce, that’s unrealistic. Don’t expect anything nice from them, if they want to go fine, might be cheaper, but I found it a waste of time as her father was instructing her solicitor anyway and wanted to win a good deal on their terms and had the money to go to court tens of times. We went a few times and was a waste of time.

I suppose I am concerned that if I had had mediation I might still be with her and I find that thought scary and not nice. Mediation on demand or counselling if it works for you and marriage guidance also and I also think religions can help people be better to each other. Solicitors can get argumentative as it helps them get paid.

Helen Dudden - November 1, 2017 at 12:24pm

You have made one comment, get a good deal. A good deal for whom?
A father of course, will protect his own.
A deal or an agreement you could live with for as long as needed.
I think the Vicar was trying to show common areas. Mental health, is an illness like any other illness.
I’m always concerned by the problems caused by divorce.

JamesB - November 1, 2017 at 4:13pm

Its what lawyers do to the laypeople. They say, we can get you a really good deal. The problem is a bit of a zero sum game where if one side ‘wins’ the other side loses.

It cost him more than he eventually won to say he won and he didn’t get as much as he wanted initially. It can be a lot of posturing. If her lawyer had offered the deal we agreed on on day 1, I would have accepted it, but he didn’t as he wouldn’t have got the fees then, but we are getting side tracked from the subject of the discussion.

So much wasted in lawyers fees negotiating. Tbh its the money on divorce that upsets people more than the BS divorce petitions.

I can see why people walk away and give everything as lawyers make it as hard as possible and encourage that. The divorce system is a mess and the ancillary relief system is a mess and both need reforming as said above and the AR like the Scottish system.

Wrt international stuff you mention, the Hague convention seems fair and imposing Child Maintenance for a child in another country seems pushing luck, even CSA/CMEC/CMOptions/CMS rightly don’t do that.

JamesB - November 1, 2017 at 4:16pm

re: Tbh its the money on divorce that upsets people more than the BS divorce petitions.

I take that back. as per the subject, the divorce process needs sorting out just as much if not more than the ancillary relief process. They both are very bad and in need of reform.

Helen Dudden - November 1, 2017 at 12:43pm

I have concerned for many years on this subject. I found out personally about international child access and abduction. The cost of international law both monetary and emotional.
More does need to be done, I think the comments prove how emotional the ride can be.

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